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socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 33479
Experience:  Retired (mostly)
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please advise price of asking an employment law question

Customer Question

please advise price of asking an employment law question
Submitted: 1 year ago.
Category: California Employment Law
Expert:  socrateaser replied 1 year ago.
Hello,

The customer (that's you) controls the price. The contributor (me, or another similarly qualified individual) decides whether or not to answer the question based upon the price that you set. No question can be sent by a customer without stating a price. Your question has a price, and I am prepared to answer it for the price you have offered -- assuming that once you ask the question, I am able to answer.

So, feel free to ask the question, and I'll be happy to consider answering.

If you don't know how much you offered to pay, let me know and I will have customer service contact you. I am not privy to your offer price.

Thanks in advdance.
Customer: replied 1 year ago.

I thought I offered 38, which is fine. Do you see the question I typed out about working as an attorney, being hired by a temp staffting agency but working for a bank, with the timesheet question and the question about working remotely for part of a day.?

Expert:  socrateaser replied 1 year ago.
No, I'm sorry, but I see nothing other than your question re price. Feel free to type it up again.
Customer: replied 1 year ago.

I typed this out earlier. I am a california banking attorney, working as a contract attorney for a large national bank in california. I work on an hourly rate for my employer, a staffing agency the bank uses. The staffing agency requires me to fill out time sheets for them each day, for time worked in the am and time worked in the pm. My manager at the bank does not think that give her enough information about the exact times of day I am working. My schedule is such that a do work on by blackberry every am at 5pm and after, then often have a 7 am conf call. Then take the bus to work and put int two half days. My employers says just to enter two amounts of time for the total worked, which will not (and cannot match up with the actual times of day worked because of their system limitation. If my manager asked me to give her a separate time report showing all this detail would that be an inappropriate step which would suggest that I am being treated as an employee who should get benefit? instead of a consultant working for another firm.


A separate question. My manager may take the view that I should not work at home but should come into the office at 5-6-7 am (well before office hours ) to work on my blackberry and take calls. Most other attorneys in the department work from home constantly, as does my manager. I think this would be unreasonable to require me to do this (for an hour or so of early morning work) and would also be another indicia of her treating me as her employee subject to benefits, and not a consultant. Please advise.

Expert:  socrateaser replied 1 year ago.
If my manager asked me to give her a separate time report showing all this detail, would that be an inappropriate step which would suggest that I am being treated as an employee who should get benefit.

A: The issue of whether or not an employee is transformed into an employee of the contractor in a leased employment relationship devolves to whether or not the employee meets the definition of a "common law employee" under the test first set out in Community for Creative Non-Violence v. Reid, 490 U. S. 730 (1989):

"In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party's right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party." See also, Nationwide Mutual Ins. Co. v. Darden, 503 U.S. 318, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992); Bronk v. Mountain States Tel. & Tel., Inc., 943 F. Supp. 1317 (1996).

A singular request by an employer to more carefully detail an employee's work product is probably insufficient to bring the employee within the scope of precedent decisions in this area of employment law.

Though, in this author's opinion, practically all so-called leased employment arrangements are shams to avoid the true purpose of the agreement, which is precisely to avoid paying benefits to employees, for whom the employer does not consider core personnel worthy of such treatment. Left unchecked, employers will eventually exclude everyone -- though the IRS will carefully scrutinize a benefit plan where it is discovered that more than 20% of non-highly compensated employees are outsourced/leased. The problem is that there is no routine manner to discover this threshold, because employers are not required to report it to the IRS. It arises only as the result of an audit concerning some other employment/tax issue.

My manager may take the view that I should not work at home but should come into the office at 5-6-7 am (well before office hours ) to work on my blackberry and take calls. Most other attorneys in the department work from home constantly, as does my manager. I think this would be unreasonable to require me to do this (for an hour or so of early morning work) and would also be another indicia of her treating me as her employee subject to benefits, and not a consultant.


A: Now this suggests more strongly that the bank manager is controlling the manner and method of your labor. As a professional, you ought to be able to control your time spent as long as you get the job done. The counterargument is that you're being paid by the hour, so the bank may want to see you working in the building. The rebuttal would be that closely monitoring an employee at work is probably the single strongest indicia of employer control. So, yes, if you are forced to play precisely by the bank's rules, while performing a job that does not require that sort of precise monitoring, then I think you may in fact have crossed the link into the bank's employment ranks.

Hope this helps.

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